Umamaheswaram, J.
1. This is an appeal brought by the Union of India, represented by the General Manager, Eastern Railways, Calcutta and the Southern Railway, Madras, (hereinafter referred to as the 'Railway Administration') against the judgment and decree of the Subordinate Judge, Narasaraopet, in O. Section No. 114 of 1952 decreeing a sum of Rs. 4293/ (being the value of 86 bundles of dry chillies not delivered to the plaintiff) with interest thereon at 6 p.c. from 10101952 till the date of realisation. The respondents herein consigned 214 bundles of chillies to Shalimar under R/R No. 55881. Only 126 bundles were delivered and a shortage certificate bearing No. 0241 for 86 bales was given by the Superintendent, Shalimar Goods-shed on 10101951.
The respondents herein filed the suit for recovery of Rs. 6,000 on the ground that the shortage was due to wilful negligence or misconduct of the Railway Administration. The Railway Administration contended that the loss of 86 bales was due to a running train theft over which the Railway Administration had no control and that therefore there was no negligence or misconduct on their part. The subordinate Judge of Narasaraopet, in a careful judgment, held that the loss was occasioned by the negligence of the Railway Administration and its servants and passed a decree for Rs. 4293/. The Railway Administration has consequently preferred the appeal.
2. The evidence was carefully analysed and discussed by the Subordinate Judge in paragraph 6 of the judgment. As I agree with the conclusion of the Subordinate Judge, it is unnecessary to set out in detail the entire evidence. I shall however, refer to the material facts for the purpose of ascertaining whether theft had taken place as a result of the negligence or misconduct of the Railway Administration. The evidence of the Guard examined as D. W. 10 and the Assistant Station Master of Contai Road Station as D. Ws. 4 and 9 discloses that the goods train in which the chilly bales were consigned arrived at Contai Road Station at 1128 p.m., and that it left the Station at 122 a.m. The arrival of the train at the Station was late by 54 minutes. The train stopped for 81 minutes more than the scheduled time.
The reason given by the Guard for the long stay was (1) that an express tain had to pass; (2) that six empty wagons had to be attached to the goods train; and (3) that the vacuum brake which gave trouble had to be set right. He deposed that soon after the Express train passed, he went on the off side up to the Engine checking seals etc.. and that he found them in proper condition. According to his evidence when he walked along the train with his torch at Binapur Station he found two wagons doors in open condition. He informed the Assistant Station Master and got the wagons resealed. At Kharagpur, it was found that 86 bales of chillies were missing. It is in evidence that within a few hours after the goods train left Contai Road Station, another train called 'South Coal Special' came to Contai Road Station from Binapur side. The guard of the train examined as D. W. 5 noticed within two miles from Contai Road Station nine bags of chillies lying on either side of the line. He stopped his train, got them picked up by the line patrolman, carried them to Contai Road Station and delivered them to the Assistant Station Master.
It is therefore clear that the 86 bales of chillies must have been stolen either at Contai Road Station where the train stopped for 115 minutes or partly at Contai Road Station and partly while the train was in motion between Contai Road Station and Binapur, As nine bales were discovered at a distance of two miles from Contai Road Station, part of the bales must have been removed or thrown out of the wagon while the train was in motion, The theory put forward by the Railway Administration that the thieves must have got into the train while the train was In motion and removed or stolen the bales during that period appears to he improbable. The guard stated that the train was running at a speed of 25 miles per hour. The distance of 18 miles between Contai Road Station and Binapur was covered within 48 minutes. The doors of the wagon which had to be tampered with and opened were not like doors of a passenger bogey with convenient handles. They had bolts and rivets and to unloose them great force has to be used. As the holts and rivets are higher
it is not possible to reach them from the ground level, When the train was moving at a Speed of 25 miles, it is not possible for even expert thieves to board the train and remove the seals and rivets while in motion.
The fact that 9 bales were thrown about two miles away at the railway tract indicates that the thieves must have got into the train even at Contai Road Station. It is admitted by the Guard (D. W. 10) in answer to a question put by the Court that 'it is possible that someone might have meddled with the wagon while the train was in the station after my checking and before it left the station as it was dark and some miscreant got in as the train was in motion.' The records relating to the police investigation have also not been produced by the Railway Administration. Having given my best consideration to the facts of the case, I agree with the conclusions of the Subordinate Judge that the miscreants must have removed the seals and rivets and entered the wagon while the train was stationed at Contai Road Station.
3. For the purpose of deciding the question whether the loss took place as a result of tile negligence or misconduct of the Railway Administration, it is necessary to refer to the terms of Section 74-D of the Indian Railways Act, which according to both sides applies to the case. Section 74-D runs as follows:
'Notwithstanding anything contained in SECTION 74-C --
(a) where the whole of a consignment of goods or the whole of any package forming part of a consignment carried at owner's risk rate is not delivered to the consignee and such non-delivery is not proved by the Railway Administration to have been due to any accident to the train or to fire, or
(b) where, in respect of any consignment of goods or of any package which had been so covered or protected that the covering or protection was not readily removable by hand, it is pointed out to the railway administration on or before delivery that any part of such consignment or package had been pilfered in transit, the railway administration shall be bound to disclose to the consignor how the consignment or package was dealt with throughout the time it was in its possession or control, but if negligence or misconduct on the part of the railway administration or of any of its servants cannot be fairly inferred from such disclosure, the burden of proving such negligence or misconduct shall lie on the consignor.'
The question which has therefore, to be determined in the present case is whether negligence or misconduct on the part of the Railway Administration or of any of its servants is inferable from the evidence adduced by the Railway Administration. It is only if such negligence or misconduct is not inferable that the burden of proving such negligence or misconduct shifts to the consignor.
4. Having regard to the clear terms of section 74D of the Indian Railways Act, which has been recently enacted, it is unnecessary to refer to the decision of the Privy Council in Dwarka Nath v. Rivers Steam Navigation Co. Ltd., AIR 1917 PC 173, or the decisions of the various High Courts on the question of onus of proof. Lord Phillimore held in AIR 1917 PC 173 that the initial onus lay on the consignor or consignee to prove that the Railway Administration did not take such care of the goods as a man of ordinary prudence would take of his own goods. He further pointed out that having regard to the terms of SECTION 106 of the Indian Evidence Act, it was necessary for the Railway Company in the first instance to call the material witnesses as it was peculiarly in their knowledge. He added that
'this provision of the law of evidence does not discharge the plaintiffs from proving the want of due diligence, or (expressing it otherwise) the negligence, of the servants of the defendant company.'
5. Mr. M. Krishna Rao, the learned advocate for the respondents, pointed out that a different view is to be found in Ilalsbury's Laws of England (Simmons Edn.) 3rd Edn., Vol. II at p. 117. The passage relied on is as follows:
'When a chattel entrusted to a custodian is lost, injured, or destroyed, the onus of proof is on the custodian to show that the injury did not happen in consequence of his neglect to use such care and diligence as a prudent or careful man would exercise in relation to his own property.'
In several decisions of the Indian High Courts, the burden of proof has been cast upon the Railway Administration notwithstanding the clear terms in which the Privy Council expressed the view in the case referred to supra. In Ponappa v. Parakkalati, AIR 1937 Mad 411, a Bench decision of the Madras High Court attempted to reconcile the several decisions and laid down the rule in the same terms as the Privy Council. Sri M. Krishna Rao contended that even if the burden of proof lies upon the consignor or consignee to prov3 negligence on the part of the Railway Administration, the principle of res ipsa loqniture might be invoked, and that as the goods were lost from the train, it is the duty of the Railway Administration to prove that there was no negligence. This argument, in my view, cannot avail having regard to the clear words in which Lord Phillimore laid down the law. But, as SECTION 74-D has been recently introduced by the Legislature, it is unnecessary to refer to and discuss the several decisions bearing on this question.
6. The question as to whether negligence or misconduct on the part of the Railway Administration has been proved or not is essentially a question of fact depending upon the inference to he drawn from the evidence and the circumstances appearing in each case. As pointed out supra, the miscreants must have entered the wagon while the train was at Contai Road Station. It is admitted that there was no railway protection police on the train or watch and ward at Contai Road Station. Though it is in evidence that three of the porters were assisting the Guard and the Engine driver to attach the six empty wagons, it is not clear how many railway servants were employed or on duty during the night.
The probabilities are that having regard to the long stoppage of the goods train, the railway servants or third parties in connivance with the railway servants removed the seals and rivets and entered the wagon and removed most of the bales and threw out the rest from the wagon while the train was in motion. If really, the railway servants did not commit theft but third parties removed the seals and rivets and entered the wagon while the train stopped at Contai Road Station, it reveals sheer negligence on the part of the Railway Administration. In either view, I am inclined to agree with the Subordinate Judge that the loss was occasioned by the negligence or misconduct of the Railway Administration.
7. A similar inference was drawn by a Bench of the Madras High Court in South Indian Railway Co. Ltd v. V. M. S. P. Bros., 82 Mad LJ 573: (AIR 1932 Mad 545). Both the learned Judges held that the miscreants could not have got into the train while it was in motion. They found that the bolts were drawn and the door opened by some railway servants or some one with the connivance of the railway servants. They held further that if it was stolen by third parties, wilful negligence must he attributed to the railway servants. Reliance was placed by the learned Judges on an earlier decision of the Allahabad High Court in Khairati Lal v. B. B. and C. I. Rly., AIR 1928 All 230. A similar inference was drawn by the Bombay High Court in Central India Spinning and Weaving Co. v. G. I. P. Rly., ILR 47 Bom 155: (AIR 1922 Bom 46). Though the question has to be decided on the '. particular Facts of the case, the Court is entitled , to the benefit of the principles laid down by Courts in similar cases and to decisions passed in circumstances more or less the same.
While drawing this inference I am fully alive to the principle laid down in M'Queen v. Great Western Rly. Co., 187510 QB 569, that there is no presumption that the theft was committed by the railway servants only and not by third parties. In drawing the inference from the evidence and circumstances of the case, I also proceed on the footing that the initial onus of proving negligence is on the consignor or the consignee. Even assuming that the guard and the engine driver were not blameworthy, I hold that the theft must have been committed by the station staff or by third parties with their connivance. In any event, I am inclined to hold that even if the miscreants had entered without knowledge or connivance of the j railway servants employed at the station, the loss must be attributed to the wilful negligence of the Railway Administration.
8. In the result, I confirm the decision of theSubordinate Judge and dismiss the appeal withcosts.